The two Duke University lacrosse playersat an off-campus party last month will have lost, even if they win acquittals in a trial, a CBS News legal analyst suggested Tuesday.
"If they're acquitted, (in the mind of the public) they were not innocent, they got off. The stigma will always be there," defense attorney Mickey Sherman observed to The Early Show's Tracy Smith. "(Either way this goes), they're losers. They will never be able to get back to where they were."
Sherman described the evidence in the case as "crappy."
But fellow CBS News legal analyst Wendy Murphy, a former prosecutor, told Smith Tuesday the evidence may be more damning than we know.
She says reports last week that DNA tests done on samples taken from Duke lacrosse players were all negative may have been premature.
"More tests were being done and, as of late last week, the results were back, but we haven't heard them yet. There were more tests sent off to a quote-unquote 'more sophisticated' lab," she says. "So, we really don't know whether there are absolutely no DNA tests that do match these two guys to this crime scene. I think we have to wait a little bit before we can conclude this case involves no DNA evidence."
Sherman said flatly: "The damning evidence is her saying these young men raped me. Conventionally, that's the way the rape cases are (brought). You saw it in the William Kennedy Smith case, and with Kobe Bryant. It's the conventional way to establish a rape charge.
"That's why it was politically correct, from both a racial point of view and a (district attorney's) point of view that, when you have a complaint by a victim, even though the rest of the evidence is crappy and lacking, as it is here, you're still going to let the jury decide.
"That's what the (Durham County D.A. Mike Nifong) did here. He put it in front of the grand jury, which you can basically (persuade) to bring an indictment against anybody. But it's easier for the district attorney to pass off the responsibility and say, 'Hey, I don't know what happened, but if you say you were raped, I'm going with it. Let a jury decide. That's what's going on here."
Murphy said Sherman was right, for the wrong reasons.
"For strange reasons, I agree with Mickey," she said. "You know, she said, and it was reported (Monday), that she identified two of the three men she said raped her with 100 percent certainty, from photographic identification procedures. That's pretty good evidence when you consider there were 46 guys there. And, out of all of them, she said, 'These are the two who did it. I'm 100 percent certain of it.' She's a citizen. If any of us reported a rape and we felt 100 percent certain who did it, we're entitled to be believed. And that's what prosecutors are supposed to do, put it to the jury, just as Mickey said."
Smith noted that the other dancer at the party that night says the alleged victim was talkative and friendly and smiling at the start of the night, then totally incoherent by the end of the night.
Murphy calls that significant: "I mean, it's important in the sense that she's described a dramatic change in demeanor by a woman she didn't really know very well, and her perspective is she was fine and happy and, thereafter, after the incident, she was basically out of it. So we don't know whether that means she was traumatized by the rape, under the influence of some kind of date rape drug, or other intoxicating substance. We just don't know at this point. But it's helpful evidence in the sense that it suggests something very, very bad happened to that woman."
Sherman took issue with that: "The police officers who interviewed her after the 911 call said she was fall-down drunk. I mean, we do know what happened. She got drunk. She got intoxicated. You have a trained observer, a police officer not working for the defense, that night, who observes her and calls it into the dispatcher. That's pretty good evidence."
He added that the time-stamped photos defense lawyers claim will exonerate their clients would be "damning evidence for the prosecution."
Murphy counters that the times show a gap during which the rape could have taken place.
Will the case come to trial?
Murphy's not sure: "(The players are) entitled to discovery. They're going to find out all of the evidence we haven't heard yet. It could be a year now before we see any actual trial.
"Who knows? There could be a deal going on behind the scenes that's going to make this case go away very quickly, because it's incredibly embarrassing and harmful both to Duke as an institution and to that region, where they've had terrible, terrible race-sensitive problems for a long time."
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